It is also important to underline that the right of self-determination is basically a Western concept because this principle did not exist in the African civilizations prior to the arrival of foreigners, whether Arabs or Europeans. Normally Africans lived under tribal or chiefdom structures. During that era, Africans who were mainly peasants and nomads could freely travel from one place to another in the quest of food or to feed their livestock. “Prior to European colonization of Africa, the Masai herded their cattle freely across the Great Rift Valley of East Africa”.352
The current African boundaries were created and imposed by the colonialists who divided Africa without taking into consideration the cultural or tribal backgrounds of the people.
The concept of the right of self-determination does not exist in Islamic theology either. The latter preaches the unification of its believers in a single community, the Muslim Umma. Yet, the expression Umma has been employed in a variety of allusions, as a nation, or a group of people, or a religious community, or humanity at large.
From this logic, one could assume that the Islamic religion does not preach any territorial limits for its Umma. In Iran, for example, “the Supreme Leader said the Muslim world which enjoys rich natural resources, strategic geographical locations, wide lands, large population, active work force and experts can easily turn into a unified power but big powers are apposed to such a phenomenon”.353
Self-Determination as a concept introduced in the UN Charter
The Right to Self-Determination appeared in the international lexicon in 1945 when the founding members of the United Nations crucially incorporated it in Article 1 Paragraph 2 of the UN Charter stipulating that, “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”. It is also mentioned in Article 55. Primarily, it was included in the Charter of the UN, with an anti-colonial objective. ‘self-determination originated as an enforceable right to freedom from colonial rule”.354
Despite the inclusion of the concept of“equal rights and self-determination of peoples’,in the Charter of the UN in 1945, until the late 1950s the majority of people in Africa and Asia were still under colonialism or foreign occupation.
Indeed the procedure to uproot colonialism from a territory was not an easy task, and the struggle against colonialism did not end peacefully around the world; independent states were born with a costly loss of human lives.
An important study concluded that, “The entire process of decolonization was not all-smooth sailing. There were many instances when those states still intent on holding on to their colonies put up a strong resistance against having their dominions stripped from them but the calls for independence – brought home the international community the importance of achieving self-determination in order to ensure peace and security”.355
Liberation movements around the world pressured imperialists by using all means necessary to end colonialism. It was not until 1960 that the United Nations General Assembly adopted the milestone Resolution, 1514 (XV) entitled Declaration on the Granting of Independence to Colonial Countries and Peoples.
This resolution boosted the efforts of the liberation movements to continue with their struggles to end colonialism. Like all UN General Assembly resolutions, Resolution 1514 (XV) was a non-binding political declaration, yet, because of a determined political pressure it boosted decolonization efforts throughout the world.
“Despite the success of the UN’s decolonization policies, many countries felt the organization was working too slowly. Dozens of territories were still not self-governing and needed support to achieve independence. The UN General Assembly discussed the issue of decolonization and decided to put an effort into making it a higher priority. On December 14, 1960, it issued the Declaration on the Granting of Independence to Colonial Countries and Peoples also known as Resolution 1514. This declaration affirmed the right of all peoples to independence, including political freedom to help determine how they are governed”.356
Since its introduction in the UN Charter, the right of self-determination has been a vital instrument for people fighting against colonialism or foreign occupation.
But sixty years later, some territories are still under colonialism or foreign occupation.
Self-Determination and the End of Colonialism
It is important to underline that the right of self-determination is a natural and essential right for all human beings. It is universal, inalienable and indivisible and should be applied equally to all peoples. It should serve as the guiding light for humanity in the struggle for freedom and democracy around the world. Unfortunately this basic human right is not applied equally to all peoples.
Despite its ambiguous definition, the principle of the right of self-determination was introduced in other relevant international instruments and documents, for example, the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social, and Cultural Rights (ICESCR), and the International Covenant on Civil and Political rights (ICCPR).
The right of self-determination, which is considered a principal element in the motivation behind the creation of the United Nations, was only mentioned twice in its Charter (Articles 1 and 55) without any guideline or obvious definition, and in Article 73 with a clear orientation towards decolonization. “In Art.73, it is stated that UN members charged with the responsibility for peoples not enjoying self-government are obliged to respect the interests of the inhabitants of these territories”.357
The negligence in not suggesting a definition of “equal rights and self-determination of peoples”, has clearly introduced some ambiguity in international law; especially when it comes to interpreting who has the right to “self-determination” or who are the “peoples’. Are they a group of people belonging to the same ethnical religious and cultural background? If yes, could they just decide their own parameters in issues of a political, social and sovereign nature? Also there’s a need to clarify the idea of territorial integrity or a nation/state boundary. These questions have allowed some countries to apply this concept in a selective way or to give consent to some minorities or groups of people for their own political aspirations.
In some regions, political and economic hegemony motivated some former colonial powers to resist quitting all their colonies, or when they were forced to leave, they unilaterally and arbitrarily introduced boundaries, which created irreparable tribal divisions and even separated unified families. “The British officials did not consult the islanders. They did not tell them what was happening to them. They did not tell anyone else what they planned to do. They just went right ahead and uprooted an entire community, ordered people from their jobs and their homes, crammed them on to ships, and sailed them away to a new life and foreign country. They trampled on two centuries of community and two centuries of history, and damped their detritus into prison cells and quaysides in Victoria and Port Louis”.358
In some countries, the post-colonial period created continuous conflicts among people of the same family, social, religious, and cultural backgrounds. That was the legacy of a foreign imperialism which is still devastating millions of people around the globe. Despite the fact that some countries had freed themselves from colonialism and foreign occupation, the former administrators kept a stranglehold on them. They created a neocolonialism concept; an international economic system that allows the former colonial powers to control their former colonies.
An example of a neocolonialism policy is the CFA, a monetary system which is applied in some former French African colonies. The CFA Community includes Burkina Faso, Senegal, Guinea Bissau, Côte d’Ivoire, Togo, Benin, Equatorial Guinea, Gabon, Mali, Chad, the Central African Republic, Cameroon, the Congo, and the Comoro Islands, all of whom had a common currency during the period of French colonialism. It was first introduced by the colonial power in 1945, and now, more than forty years after the independence of these countries, that CFA currency is still strongly coupled with the monetary system of their former colonial power. “In 1945 General Charles De Gaulle and his officials knew that sooner than later there would be enough pressure for them to grant independence to their colonies. So they created the CFA, which guaranteed that they would control the colonies for many decades after the so-called independence”.359
The neo-colonial presence was also justified by development assistance programs, military presence or by introducing economic programs that would allow the former colonial administration a high degree of control.
The Illusion of Freedom
Freedom, while clearly stated on paper, was illusory everywhere. In the case of India, for example, “Indirect rule in India has a long history; the Rajputs and princely states had a fair degree of autonomy in relation to the British colonial government. In contrast, under the IMF-World Bank tutelage, the Union Minister of Finance reports directly to 1818 Street N.W, Washington D.C bypassing parliament and the democratic process”.360
As mentioned previously, the right of self-determination is an inalienable human right, which should not be deviated from under any circumstances or for any political, social or religious purposes. Yet, some countries apply this vital legal human rights concept by a modus operandi under which they pick and choose who to apply this concept to and when to do so. They have thus politicized this fundamental human rights principle. Consequently, they disregard the fact that by signing and ratifying the instruments to become members of the United Nations, they have committed themselves to respect and endorse the principles of the UN Charter. “Court and governmental organizations, no matter how international in purview, will always be slowed down by considerations of geopolitics”.361
The right of self-determination should not be politicized nor manipulated to serve ideological ends or interests that might harm peoples. It should not serve a narrow national interest, but instead it should be a tool to protect humanity against injustice.
As a basic human rights element, the right of self-determination should be applied impartially, because it is essential in promoting order, security, justice and sustainable peace. It should also be a key element to establish rule of law and promote human rights in general.
Moreover, the right of self-determination has been trampled on by some countries, which supposedly claim to possess the ethical obligation of being the custodians of human rights. These ethical values do not reflect their responsibilities as custodians of human rights because they prefer to put their national, political self-interests ahead of collective interests and international moral values.
The occupation of the Comorian island of Mayotte
Several cases of colonialism and foreign occupation around the world confirm the above assumption and can therefore be easily illustrated with examples.
The question of the occupation of the Comorian Island of Mayotte by the former colonial power, France, is one such example. It is unique in the chronicles of decolonization, a violation of the United Nations Charter and the denial of Security Council and General Assembly resolutions regarding the right of self-determination and of all UN resolutions related to this question.
In conformity with United Nations resolution 1514 (XV) of June 1973, an Agreement was signed between the colonial administrator, namely France, and the Comorian internal self-government, to organize a global referendum for self-determination for the four Comorian islands, Grand Comore, Anjouan, Mayotte and Moheli which comprised the Comoros Archipelago. They both agreed that the independence of the Comoros Archipelago would be determined by the total results of the four islands composing the Comoros.
In December 1974 a global referendum took place on the four islands. In this referendum, 95 % of Comorians voted for independence. Surprised by the unexpected result, the French Government attempted to change the law and intended to sign another agreement with the Comorian authorities to reorganize another referendum of which the result of the referendum and independence of the Comoros would be determined by the results of each island separately, and not by the Comoros as a whole. That was a transparent attempt to create divisions in the Comoros archipelago.
Learning that the French government was attempting to introduce a new law which would violate the wish of the Comorian peoples’ right of self-determination, the Comorian authorities who had adhered strictly to the Agreement of June 1973 which had stipulated that the results of the archipelago-wide referendum would determine the future of the Comoros, declared independence in July 1975.
The new Comorian State was unanimously admitted to the United Nations in November 1975 by General Assembly resolution 3385 (XXX). This resolution reaffirmed the need to respect the unity and territorial integrity of the Comoros composed of all the four islands of Anjouan, Grand Comore, Mayotte and Moheli.
Unfortunately, France decided unilaterally to occupy Mayotte, one of the four islands of the new Comorian sovereign state, without any international legal reference or without any local agreement with the Comorian people.
The occupation of the Comoros island of Mayotte is an example that proves how the rule of law could be transformed and become a theoretical principle, and how political hegemony could be permissible in an international context.
This case illustrates how those who pretend to be guardians of human rights and the rule of law are at the very those abusing the same human rights they profess to protect.
Around the globe, this idea has been used in several other similar or different matters where powerful countries use their political and economic power or military muscle to implement their hegemonic interests.
This denial is also an objection to the promotion of the rule of law, a rejection of the protection of human rights in general, an abuse of the responsibility to preserve international peace, order and security in particular.
The unsuccessful extensive efforts by the international community to persuade violators to respect their international obligations, demonstrates the failure of the United Nations in its unfinished decolonization mission. Looking away and doing nothing is tantamount to a failure of the international community in protecting an independent state from aggression by another state.
The task of decolonization is not yet complete either, as there are still 16 Non-Self-Governing Territories362 remaining on the United Nations list. “We must continue with our common endeavor, in the spirit of cooperation among all parties involved to bring an end to colonialism in the shortest possible time”.363
Given the lack of an implementing mechanism and a genuine procedure for executing UN resolutions, it is easy to understand how some influential member states can use their political or economic power either to protect their interests or those of their close allies by omitting to respect the rule of law and thereby applying selectivity. This lacuna and laxity has demonstrated the weakness of the UN in implementing its own decisions.
To overcome these original handicaps, to achieve its noble mission and for the UN to be more useful to human beings and to be a productive instrument of multilateralism, an efficient tool for development, several essential and substantial issues should be addressed. Member states should reform the UN particularly its bureaucratic and heavy procedural methods; they should introduce a mechanism to implement its resolutions and a procedure to follow up and monitor the implementation of its decisions. “In this connection, it appears that the 2008 session has provided us with an important “wake up call”. We have heard detailed critiques of our method of work made by a number of territorial governmental and non-governmental representatives, which have repeated long-held criticisms over the lack of implementation of the decolonization mandate”.364
Thus, the reform of the UN General Assembly and particularly the UN Security Council is a sine qua non to save the UN from pursuing the same inauspicious path as the League of Nations. Efforts should be made to align it with its original mission, peace, security, and development.
The UN should emphasize its activities on its un-finished mission to liberate people under colonialism or foreign occupation. Moreover the unsolved problems of colonialism are sources of war or regional destabilization around the world. The majority of the civil wars that occurred since the fall of the Berlin Wall were basically all rooted in territorial disputes.
In the post-Cold War world, the decision to apply the right of self-determination has been applied unevenly. In some former republics or entities that broke off from their original federated states and had all political and legal merits to exercise their right of self-determination, the lack of economic and political incentives have failed to motivate the “custodians of human rights’ and the international community to support, recognize and implement their inalienable right of self-determination.
The cases of the Former Somalia Republic and the Former Socialist Federal Republic of Yugoslavia
The following are two further identical and comparable cases that took place in Africa and in Europe at the same period. Both the independence of the Republic of Somaliland and the break-up of the Former Republic entities of the Socialist Federal Republic of Yugoslavia are two identical cases that illustrate the above assumption.
The Republic of Somaliland was a former British protectorate which became independent in 1960. The new independent state decided to unite with the Italian Somaliland and formed the Somali Republic.
In 1991, during a period of internal tribal unrest, the central government of the Somali Republic was ousted by a coup d’etat. This crisis led to the disintegration of the Somali Republic which coincided with a period of turmoil around the world following the fall of the Berlin Wall.
In Europe at the same time period, a similar collapse took place in the Socialist Federal Republic of Yugoslavia which was a Federated State composed of six republic entities (the Socialist Republics of Slovenia, Croatia, Bosnia-Herzegovinia, Montenegro, Serbia, and Macedonia). Immediately after that, most of these republic entities declared their independence.
Even though these two countries, Somalia Republic and the Socialist Federal Republic of Yugoslavia were located in different continents, their political problems in the early 1990s were similar. Originally, they were both Federated States constituted by republic entities, which seceded when the central governments disintegrated. These two countries were also devastated by Civil Wars at the same period.
In 1991, when the Republic of Somaliland seceded from the Somali Republic, it re-acquired its original international boundaries inherited from the British after its independence in 1960, prior to its unification with the Somali Republic. It has established a functioning and stable constitutional democracy. Eighteen years later, however, it is still in pursuit of international recognition as a sovereign country. In Europe, however, the former Yugoslavia Republics entities which seceded from the central government and declared their independence, were duly recognized by the international community as sovereign states.
Similarly, earlier this year, Kosovo, an autonomous province of the Republic of Serbia, declared its independence and was also immediately recognized as a sovereign state by several countries. By doing so, these countries have created a precedent in the international community because several provinces and regions which are integral parts of sovereign states might also claim similar independence. The recognition of the controversial independence of Kosovo was an obvious demonstration of a political objective, because Kosovo was an autonomous province of a sovereign state and did not have any independent republic status as was the case of the other republic entities of the former Yugoslavia. Its recognition was therefore a violation of the territorial integrity of a sovereign state. Politically speaking, the countries that have recognized the independence of Kosovo have participated and accepted the dismemberment of the Republic of Serbia, an independent state, a member of the United Nations, and have therefore created a precedent, and have also generated tension and instability in a volatile region.
It is important to emphasize that to preserve peace and security around the world and promote human rights to all peoples, the right of self-determination should be respected and applied equally and should not be used to separate or dismantle sovereign and independent states. The international community should solidify the vested right acquired through different international instruments and treaties.
The fact of recognizing the independence of the Republic entities of the former Yugoslavia and a province of a sovereign state, and of failing to recognize the independence of the Republic of Somaliland is an ideal example which proves that the right of self-determination is not applied equally to all peoples as stipulated by the Charter of the United Nations.
Based on the original independent status acquired from the former colonial power, the British, in 1960, the case of the Republic of Somaliland has all the political merits to be recognized as a sovereign state but the international community has denied this basic human right. “Somaliland has done what it could on its own, and is now appealing to the international community not to let its people down, who have played by the highest standards of international rules and acted with exceptional fortitude, but who face onerous difficulties due to the isolation brought about by non-recognition. It would be unfair to tie their fate to that of their brethren in the rest of the former Somali Republic, which is still in turmoil”.365
The problem of Jammu and Kashmir
The question of Jammu and Kashmir is another one of the most complex legacies of Western colonization; its geographic location has made the issue of the unfinished liberation of the people of Kashmir more complicated because four countries, Afghanistan, China, India and Pakistan, surround the disputed territory. “Since the founding of India and Pakistan as separate states in 1947, the dispute over who should control Kashmir has been one of the world’s most enduring and violent conflicts. In 1999, the two states came close to war over a border incursion by Muslim partisans into the Kargil region, which borders Kashmir in India. According to the Indian government those involved were trained in and backed by Pakistan”.366
The Kashmir dispute is definitely an issue of self-determination; it is also a territorial claim between three rival countries sharing borders with Kashmir, namely, China, India and Pakistan. Their claims are essentially based on religious rights and political and cultural affiliations The problem is also an issue of human rights because the people of Kashmir have being deprived from their right to decide their own future without the interference of any external political support or guidance.
The disputed territory of Kashmir has instigated wars and border fighting between India and Pakistan and India and China who all claim partial or full claims to the territory. This disputed territory is now occupied and administrated by these three rival countries. Thus the problem has become a regional issue of international concern. Consequently, the crisis in Kashmir has fueled a nuclear competition between the rivals involved in the issue and has thereby created permanent ethnical and religious conflicts and tension in the region and around the globe. “This conflict, between two of the world’s most populous countries, both with nuclear capability has the ominous potential to escalate into theater nuclear war, or beyond”.367
The core of the problem is the disputed ownership of Kashmir. Pakistan is advocating the cause of the people of Kashmir and claims that the latter have been “united” with India against their will because they were never exercised their right of self-determination. India supports its claims by stating that the question of Kashmir is a matter of territorial integrity, while at the same time disregarding a very large number of UN Security Council resolutions relating to this dispute. China’s interest in this disputed land is mainly based on the territory geostrategic situation. Meanwhile within Kashmir, a separatist movement has surfaced and is struggling for an independent state.
The question of Kashmir started during the partition of India and Pakistan in 1947 when the Britain, the former colonial power, withdrew from the India, and divided it along religious backgrounds. It created Pakistan, predominantly Muslim, and India, largely Hindu.
The question was one of dealing with the “Princely States” of which Kashmir was among several others. The British offered those Princely States two choices, either to accede to India or Pakistan or to become independent nations. Most of the Princely States; took their decisions according to the religious background of their population, and to the geographic contiguity with either Pakistan or India.
Yet this procedure did not work for Kashmir because while the vast majority of the population was Muslim, the ruler happened to be a Hindu. This internal political structure raised the issue on who had the right to decide the future of Kashmir, the population or the ruler (Maharaja).
In October 1947, after an incursion of tribes from across the border in Pakistan the situation in Kashmir deteriorated. Facing that situation, the Maharaja who was in favor of the independence of Kashmir requested military assistance from India. The latter agreed to assist the Maharaja under two conditions; first that the Maharaja should first declare Kashmir’s accession to India in consultation with the people of Kashmir. The Maharaja signed the accession of Kashmir to India without consulting the population.
In 1948, India approached the UN to resolve the problem and the UN Security Council adopted several resolutions instructing that the will of the people of Kashmir must be expressed through a democratic, free and impartial plebiscite under the supervision of the UN. The government of India, disappointed with this unexpected outcome, initially agreed to that plebiscite, but later reneged. To date the plebiscite ordered by the Security Council has not taken place.
The Kashmir dispute is also the result of a mismanaged decolonization process where the people of the territory were not given their inalienable right to decide their own political, cultural and economic future.